OPM Leave Administration

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On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu. In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu. The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza.

Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza. Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA.

The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.

Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work. Under the FMLA, to do so the employer must have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work, and the employee must have been notified of the requirement in advance. The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.

Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights. The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting. The DOL also suggests that employers prepare a plan of action.

As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA. As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments. Based on my review, the consensus of major labor and employment law firms and interested associations is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009).

Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately. The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.

Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions. Until regulations are issued, employers need to do the best they can to comply with the statutory language.

For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave. Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue. The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309.

I offer three thoughts in support of my suggestion. First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations. Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations. Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.

What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).

The Fifth Circuit in Hart v. Comcast of Houston, LLC, No. 09-20238, 2009 U.S. App. LEXIS 22720 (5th Cir. Oct. 15, 2009) recently found that an employee who fails to return to work from FMLA as requested by his employer subsequent to being released by his physician to return to work fails to state an FMLA retaliation claim. The post-release failure to return to work as requested by the employer, the court found, was a legitimate, non-discriminatory reason justifying the employee's removal independent of the taking of FMLA leave.

Comment: The FMLA does not grant employee's the absolute right to return to work from FMLA leave. Rather, the right to return to work may be superceded where, as in Hart, the employee engages in unrelated conduct that is grounds for termination. Employees who fail to return to work after their doctor has released them no longer have the FMLA right to return to work. As such, they may be disciplined or terminated for failing to return to work as requested by the employer, subject, of course, to the anti-discrimination/retaliation protections of the FMLA. An employee will not be able to demonstrate discriminatory animus where, as in Hart, the employer has a legitimate reason for terminating the employee.